Controversy Over the AMA Guides, Sixth Edition

Episode Notes

Transcript

[PLEASE NOTE: THERE WERE MULTIPLE SPEAKERS AND THE EDITOR TRIED LEVEL BEST TO IDENTIFY EACH AND EVERY SPEAKER; BUT, THERE MAY BE SOME PLACES WHERE IT WAS DOUBTFUL TO FIGURE OUT THE EXACT SPEAKER IN THE TRANSCRIPT. PLEASE SEE. THANKS.]

 

Workers Comp Matters

Controversy Over the AMA Guides, Sixth Edition

09/28/2018

 

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Intro: This is Workers Comp Matters, hosted by attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert, and author Alan S. Pierce is a leader committed to making a difference when workers comp matters.

 

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Alan S. Pierce: Welcome to Legal Talk Network, this is Alan Pierce, host of Workers Comp Matters. I am with Pierce, Pierce & Napolitano in Salem. And on this edition, we are bringing you a re-broadcast of a debate that was recently recorded by workerscompensation.com.

 

It is a feature on their website workerscompensation.com called Hot Seat, it is a debate and I had the distinct privilege and pleasure of being a participant recently in an Internet-based debate. The debate was moderated by Bob Wilson, the President of workerscompensation.com as well as Judge David Langham.

 

Judge Langham is the Deputy Chief Judge of Compensation Claims of the Florida Division of Administrative Claims and our other featured guest was Dr. Christopher Brigham.

 

Dr. Brigham is well-known in workers’ compensation circles. He is a well-known orthopedic surgeon and he recently served as Senior Editor of the Sixth Edition of the AMA Guides to the evaluation of permanent impairment. And those of you who have followed workers’ compensation and even have listened to this program on Legal Talk Network suffice it to say the Sixth Edition of the AMA Guides has sparked a lot of controversy since it was adopted about eleven years ago in 2007.

 

The Sixth Edition has resulted in a variety of court challenges, constitutional challenges as well as legislation and even hearings in Congress as to whether or not the Sixth Edition is a valid measure of disability ratings in the workers’ comp setting.

 

So, Bob Wilson and Judge Langham decided that perhaps a debate on the merits of the Sixth Edition from a proponent of the Sixth Edition, Dr. Brigham and somebody who is critical of the Sixth Edition that would be me, and this was recently recorded and they have given Legal Talk Network a permission to rebroadcast.

 

Before we get into the debate, I’d like to thank our sponsor.

 

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And at this point we will now take you to the previously recorded program.

 

Bob Wilson: I’m going to start off and I’m going to go to Alan who is representing the legal community in this discussion, and Alan, I’m going to ask you just to summarize from a legal community’s perspective what are some of the issues with the Sixth Edition that you see?

 

Alan S. Pierce: Well, thank you Bob and thank you Judge Langham and Chris. I’d like to start by saying I think I’m representing injured workers more than the legal community but as a legal community, we are the voice of the legal worker and now of the injured worker.

 

The primary objection to the Sixth Edition and I think Dr. Brigham will agree with me to some extent is that the Sixth Edition is a departure in methodology from the five prior editions. The AMA Guides have been around I think for about 46 years, I think they started 1971, they get updated every half a dozen or dozen years.

 

And many states have codified in their workers’ comp statutes, the use of the AMA Guides as a determining factor and it varies from state to state in establishing impairment ratings which translate to disability benefits or dollars. And the main problem my colleagues around the country have had with the Sixth Edition is comparing it to the fifth and fourth editions is that this change in methodology, this paradigm switch from essentially a range of motion and other medical model to a diagnose-based model has in effect lowered many of the common orthopedic impairment ratings from a certain percent to a lower percent.

 

The medical community, I can’t debate the medicine with Chris, he’s a doctor and I’m not, and the problem is we see it, is the use of these guides by various states in determining levels of benefits relying on the guides and where there’s been a substantial departure between six and five, it has resulted in a very significant disruption and benefits and/or reduction of benefits.

 

(00:05:00)

 

Essentially because the legislatures have ceded to a private organization such as the AMA, the ability to set the benefit levels; and it is the confluence of mixing or not understanding the difference between an impairment rating and a disability award of benefits.

 

Disability and impairment are two separate things, and they’re confused by the fact that the AMA Guides set forth impairment ratings but they translate to disability ratings by various states.

 

Bob Wilson: Okay, so Chris, obviously as I think I don’t think it’s any secret that the large disagreement has been over how disability is being determined on these impairments. What would be your initial response to what Alan just laid out about his criticisms?

 

Dr. Chris Brigham: Well in terms of what Alan has shared with us, I overall agree with him. I mean, there’s some nuances where we may differ is that there is — there was a change in the methodology with the Sixth Edition. It’s much like in medicine as we go through various editions of X book, science changes, we have new understandings of better approaches and that occurred with the Sixth Edition that in the prior editions and dating back to 1971, we had varying approaches.

 

We found that some of those approaches were not accurate in assessing impairment and we would have in the muscle skeletal system, entirely different approaches for the lower extremity versus the upper extremity versus the spine. We had used a range of motion methodology for the spine in the past and found that that was not a valid or reliable way to assess impairment.

 

And the whole concept we had was based upon an old conceptual framework and it needed to be updated and that’s with the International Classification of Functioning, Disability and Health.

 

I think the things that Al and I do agree on is that there is confusion between the concept of impairment and disability. There’s quite separate concepts that the impairment is a significant deviation, a loss of use of any body system or body function in an individual with a health condition, a disorder, a disease, and disability refers to activity limitations or probably restrictions and someone with the health condition disorder or disease, so they’re really two separate things.

 

But so often, we use them as the same or we’ll have permanent partial disability benefits be based upon impairment but that doesn’t make sense because it really doesn’t take in account all the other factors that relate to indemnity or ultimately to the issue of disability.

 

Judge David Langham: So, I think from that standpoint the question that just is on the edge of my brain, Bob, is for Mr. Pierce, shouldn’t the adjustment if the adjustment needs to be made in terms of how we’re compensating people or how much we’re compensating people, shouldn’t that adjustment be made in the statutory framework in terms of deciding what disability is worth or if we’re going to sit with impairment, what impairments are worth and maybe that equation is different because of the way that the latest impairment guides are created. Did that make sense?

 

Alan S. Pierce: That makes sense Judge Langham. And I do agree with Dr. Brigham that the Sixth Edition Guides are consistent that you will have two individuals with the same surgical procedure and the same surgical outcome and they should get the same impairment rating.

 

The problem is consistency is not equated with fairness. And one of the problems of the Sixth Edition is their definition of disability differs from the Fifth Edition. The Fifth Edition for example says a disability is an alteration of an individual’s capacity to meet personal, social or occupational demands because of an impairment.

 

Curiously, the Sixth Edition does not include the occupational demands portion of what goes into an impairment rating. And your question asks the legislatures changing, yes, legislatures have been petitioned around the country in states in which the Sixth Edition is mandated or the most current edition is mandated.

 

Sometimes, legislatures do not act in a quick fashion or in a fair fashion. We have seen for the last 20-25 years, a profound reduction in workers’ compensation benefits independent of the AMA Guides around the country.

 

So we are now starting to see the courts getting involved and the most recent criticisms and the declarations of the Sixth Edition of the AMA Guides that are exclusively used as a determining factor in disability ratings has been held to be unconstitutional in several jurisdictions.

 

I know the title of this Hot Seat was or at least the subtitle were the Constitutional Challenges to the Sixth Edition. So, we have several editions around the country, several cases around the country.

 

(00:09:57)

 

The Protz’s case in Pennsylvania in which the court held it was an improper delegation of authority from the legislature to a private organization to create ratings that would dictate benefits and we have two recent cases out of the State of Kansas, a very red state, a very conservative state in which the Appeals Court in Kansas analyzed the Sixth Edition and the reduction of benefits and it goes back to the Grand Bargain, the quid pro quo that was established in 1911 and upheld by the US Supreme Court in 1917, that says when a worker gives up his or her rights for a tort suit he or she must get a reasonable and adequate remedy at law and once the spotlight shined on the Sixth Edition methodology and how it works out in practice the court in Kansas simply said when one considers the attack the act as a whole that’s a Kansas act, we conclude that the Sixth Edition is not an adequate substitute remedy and they in effect declared the use of the Sixth Edition to be unconstitutional breach of the Grand Bargain by saying the Sixth Edition conflicts with the principle by measuring disability in terms of ability to perform activities of daily living rather than measuring an impairment in terms of inability to do a job.

 

So, with us legislatures either are slow to act or fail to act when something like the Sixth Edition doesn’t meet constitutional standards by an objective court and it’s not just Kansas in the Pardo case, Protz in Pennsylvania or Johnson in Kansas or the Hill case in Oklahoma we are starting to see state by state by state looking at the deviation between the Sixth Edition and the Fifth and Fourth Edition and saying that this breaches the Grand Bargain that injured workers who have seen a disability rating for a spinal fusion go from 24% to 15% or a 48% reduction in benefits or bladder dysfunction going from 60% to 30%, or a hip fracture 25% to 12%, that’s a 52% reduction.

 

Yes, some have may be improved surgical technique or surgical outcome but it doesn’t factor into the workers’ ability to sit, stand, lift, perform activities of work as opposed to activities of daily living, that’s where the problem is.

 

Bob Wilson: I just want to say how proud I am that for once Florida is not the target of these constitutional challenges and I probably will repeat that three or four times because I am just really pleased we are not in the middle of things for once, but Dr. Brigham I was going to throw back to you to address first please and then what else we’re going to say but how do you respond to this omission of the work function versus the activities of daily living and the definitional concept of the Guides, is that something that you see is valid or —

 

Dr. Chris Brigham: Let me respond to it because that was one of the many issues in Howard Johnson versus U.S. Food Service and my understanding reading through that and certainly you as attorneys and as a judge would have a better perspective of it is, it did not focus specifically and solely on the AMA Guides’ Sixth Edition, it focuses on the overall, the Act and the just combination of things feeling that this was an unreasonable, unfair basis.

 

And it did deal with the issue, they were using the Fourth Edition compared to the Sixth Edition that in the Fourth Edition there was a comment that ADLs included work. In the Fifth Edition it was clearly defined that ADLs would not include work, which I think is a very reasonable reason, and again, we’ll get back to — we’re talking about impairment not versus disability but what the Guides state in the Fifth Edition is that the medical judgment not to deal with that related to the diversity and complexity of work and that their work involves many simple, complex activity, it’s highly individualized, it makes 13:48 impairment percentages are unchanged for stable conditions but work and occupations change.

 

And there are so many other factors that relate to workability, worker’s age, education, prior work experience that we can’t have a medical model that’s going to go through and assess what the interference is of workability and thus we consider all those other aspects, so it’s not feasible to do that. So when we talk about the differences in the definition of disability between the Fourth and the Sixth, I’d again say that that’s how relevant really is that because the Guides don’t assess disability. They solely assess impairment, and I think that’s an area of significant confusion.

 

So, I see that some of the major concerns are how the Guides are used and also how it impacts the various stakeholders, probably even more so than the process of assessing impairment.

 

(00:14:50)

 

Alan S. Pierce: Well, that may be true but if you compare the impairment ratings in the Fifth to the impairment ratings in the Fourth, if there were any changes they were extremely slight and I don’t want to get — I mean, we can get into the pain add-on and I can understand where if you’re looking for something that is totally objective and diagnosis-based, you might want to move away from the edition of pain into the equation, but that is a factor, and one of the other factors is the Sixth Edition has moved away from treating physician input.

 

So, the question is, are any of these editions, should they be used as the mandatory determining factor and I think both Chris and I probably agree that the Guides should not be used as the mandatory determining factor of dollars, but in fact, we all know that they are in several states, not every state. Massachusetts does require the use of the most recent edition.

 

I think the senior editor or the editors of the AMA Guides should make it clear to those states in which they conflate disability with impairment, they should caution as they did in their introductions of the Guides that they should not be used as the all determining factor of dollars, but I think the AMA owes more of an obligation to those states that do use them that way the caution they shouldn’t be used in that way.

 

So I would call upon Chris and the AMA to go to those states where it is being challenged because it’s improperly being used by the legislature to advise the legislature and to advise the court that indeed impairment rating is not the same as disability rating and the AMA is not doing that, they are standing by the ratings even to the detriment of injured workers.

 

Bob Wilson: Let me ask you, you said as the major factor or the mandatory factor, do you as an attorney see any relevance of impairment ratings in terms of determining what somebody’s permanent, partial or permanent total cash award should be?

 

Alan S. Pierce: Yeah, to take into practice such as age, education, training, experience, literacy, et cetera, we have — as you know, Judge Langham, and your audience probably knows we have 50 states, we have federal jurisdictions, and we have no-fault auto thresholds, they rely upon guidance but not every state is the same. Some states are wage replacement states, some states are impairment rating states, most states are a mixture of the two.

 

So, when you have an agency or an industrial board determine a permanent partial or temporary partial, they will do that based upon all of those medical and vocational factors but you do have some states, when you get to the impairment phase of a rating it only allows the judge or the authority figure in that state to use an AMA Guide and that is to the detriment of other factors such as the injured workers’ age, education, training and experience.

 

I could have an identical twin brother who we both have had the same surgical result, we both have the same rating from the AMA Guides, I may have no impact on my ability to earn money and my identical twin may have a tremendous impact but if we were to rely solely on the consistency of the Sixth Edition we would both get the same award, that just isn’t fair.

 

Dr. Chris Brigham: Dave, I’d agree with Alan in terms of that where it’s the sole determinant, that’s inappropriate. It’s certainly a very important determinant, perhaps the first determinant about what the medical basis is — for the loss that that person is experienced. In the first issue of the Guides’ newsletter back in 1995, I did the first article there on the issues of impairment being quite separate than disability. I think the AMA is quite cognizant of that. They certainly welcome the input to assure that the Guides are a reliable asset in assessing the impact of an injury or illness. I can also share that in early — on November, there will be an informal gathering of interested parties to help define the future of the Guides, and I think that should be further emphasized in the Guides about what they are assessing and what they are not assessing so all stakeholders can understand that.

 

Bob Wilson: At this point we are going to take a break from our debate or a word from our sponsors.

 

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(00:20:07)

 

Alan S. Pierce: Welcome back to Workers Comp Matters and a continuation of my debate with Chris Brigham, heard on the Hot Seat Program at workerscompensation.com.

 

Bob Wilson: Okay, so Dr. Brigham expresses significant agreement with you in terms of these being absolute. He also mentions instances in which the AMA and actually himself and some writing has stressed the limitations of these Guides and has stated that he thinks they are important as a factor, but thinks they should not be the factor.

 

Alan S. Pierce: Good. Is he willing to go to a legislature in which somebody has petitioned to not use the AMA Guides as the end-all and be-all and actually say that to the appropriate committee or to the appropriate court with an amicus to simply say that this state, whether it’s Pennsylvania, whether it’s Oklahoma, whether it’s Kansas, whether it’s Kentucky or anyone else, no, you should not use these guides in the way that the state are using them.

 

I would like to see that from Chris, because if he is in agreement and we want to be transparent here, I think he has an obligation to say to the states you are using these Guides in an improper manner for what they are designed to do. They are an aid, they are a tool, they are not the determining factor of dollars.

 

Dr. Chris Brigham: I think that’s very clear in my writings which can be shared in terms of what I have written in the Guides Newsletter and in my book, ‘Living Abled and Healthy’, which really stresses many of these — the differences in the concept of impairment and disability as sort of one of the aspects of what we deal with when we are injured or ill.

 

Bob Wilson: I am just on a train of thought, I apologize. Dr. Brigham, what came in my mind when Mr. Pierce was speaking is the thought that are we talking too much about impairment and not enough about ability? In other words, should the legislators focus in on whether somebody can or cannot lift or can or cannot walk, stand, climb stairs? Should we be more focused on what the physical malady is doing in terms of limiting body function as opposed to a numerical percentage of ability or disability? Does that make any sense?

 

Alan S. Pierce: Can I add on to that before Chris answers, because it really is, we are talking about, to Alan’s point, identical injuries and completely different economic circumstances based on perhaps what the position of those individuals were in, even though they have identical injuries. By looking just at impairment we are not looking at the economic models, which I think is the core of what you are asking about in terms of the economic impact on that, is that correct David?

 

Judge David Langham: That too, but also, if I have a 15% impairment I may still be able to lift 50 pounds, but perhaps if Mr. Pierce had a 15% impairment because of our difference in age, yeah, I am much older than he is, maybe he could lift more.

 

And so that’s what I feel like maybe we are not talking about medically is what should a person do or not do and are we factoring enough of that ability or inability in when we are making these decisions or are we just focused completely on percentages? And I don’t know, does that make sense, doctor? Do you see where we are coming from?

 

Dr. Chris Brigham: It very much makes sense, Judge Langham that we — I think it’s more important to focus on function, what our ability is and we get so tied up into this numeric impairment rating, which has from my perspective been inappropriately used in some jurisdictional structures. And I think people look at the numbers and it gets into some of the bigger issues of the grand bargain about the design of a workers’ compensation system, does that drive certain behaviors that are adverse to the injured worker, and from my concept there should not be any impairment.

 

That is, let me clarify what I mean by that, that we should be preventing injury or illness and then if we are receiving appropriate medical care, we return that person to whole, they become functional again. But we so often accept that you have an injury, there is going to be some permanent loss of function and because there is going to be a number that’s associated with a payment for it and I think that drives the wrong outcomes.

 

Getting back to the larger picture, as you are mentioning here of the issue of function, what are we really valuing and assessing, I think that would be an important change.

 

Bob Wilson: I think if I could, I am going to pause for just a second. Emily Spieler, who is clearly well known in the industry, is asking the question, how are the percentages determined, for each impairment, on what science are they based, doctor, what would be your answer for that question?

 

Dr. Chris Brigham: Well, first, I appreciate Emily being here. I mean her writings have been very insightful to me and to others so I am glad you are with us. There is no numeric basis for the numbers; it’s all based upon consensus. So it’s a consensus among a group of physicians involved and others involved in the Guides, hundreds of people, but there is no underlying scientific basis for the numbers.

 

(00:25:05)

 

We were able to use evidence-based medicine with the Sixth Edition to define the diagnoses, you can use that, but the numbers are purely consensus. It would be great if we could start to collect some more data, such as NCCI collected data and found a correlation between loss of earnings and impairment ratings. If we could get data in to better say that this type of injury will typically result in this type of loss and therefore an impairment, that doesn’t solve the issue that — you have got the other variability of what the work demands are, but it’s entirely consensus basis.

 

Judge David Langham: And I think in fairness Mr. Pierce, I should bring you back up to speed.

 

Alan S. Pierce: Let me guess, I am going to guess you heard the term evidence-based medicine and you heard the term diagnosis-based model, maybe I am wrong?

 

Judge David Langham: Sort of, sort of, but I think that really his point is that these numbers are not mathematical, they are consensus based, and he —

 

Alan S. Pierce: That’s happen in space medicine, consensus based, cookie cutter medicine.

 

Judge David Langham: And he mentioned that it’s a process that’s collaborative in nature involving some hundreds of people and they are putting opinions together and basically assigning values to maladies is the way I am understanding it.

 

Alan S. Pierce: Right. And these are good doctors who have all taken the Hippocratic oath and they have every right to assign values as doctors, but when those values translate to dollars and there is no public oversight, and I am quoting from Protz, the decision in Pennsylvania, holding the use of the Sixth Edition unconstitutional, by ceding that authority to a private institution that has no public oversight, no public accountability, no public input, there is a total lack of transparency, and I am quoting, that makes a private organization like the AMA isolated from public accountability.

 

And I suggest they have every right to create their own models and to create their own definitions of what is and what is not an impairment, but once it is then applied in a universal consistent fashion to all injured workers, that’s where the problem is.

 

I don’t have necessarily a problem with Dr. Brigham and his methodology if that’s good science to him, but there has also been Daubert challenges to this reliability of this evidence as being scientifically valid. I can’t get into that, I am not a medical expert, but there have been medical experts and there have been lawyers who have argued persuasively that the methodology utilized in the development of the Sixth Edition does not meet the Daubert standard of reliable medical science, so as to be traditional-based evidence.

 

Judge David Langham: And just for the sake of bragging, let me just throw in there that Florida does not believe in Daubert and so we would be back to fry, but that’s a story for another day.

 

The thing that strikes me though is Mr. Pierce, what I am hearing you say is that from your perspective you don’t have a problem with either Dr. Brigham or the AMA, you have a problem not in the construction of their tool, you have a problem or several problems with how legislatures or regulators are using that tool, is that fair?

 

Alan S. Pierce: That’s fair and the problem goes even further, because in the development of the AMA Sixth Edition, the editors and authors of that knew that in many jurisdictions it would be used in a way contrary to their intent. And so knowing it has raised some concerns and it has raised concerns about possible bias.

 

I know Chris, I have known him for a number of years, he is a wonderful doctor, but he has ties to the insurance industry, he has a company that trains physicians in using the Guides, so when there is a major change in the methodology, there is a major change in the training that these doctors have. So many commentators have raised the issue of transparency here.

 

I would suggest to you that if a well-known physician, well-known as being friendly to injured workers was a senior editor and now you had a Seventh Edition in which disability ratings went up 30%, 40% or 50%, you would hear screaming from the other side about objectivity and transparency.

 

We didn’t have any of these issues on editions 1, 2, 3, 4 and 5, it’s only in the Sixth when we have had a new board of editors, a new paradigm shift in methodology and a wholesale reduction of anywhere from 3% to 50% in valuations of disability ratings, it’s naturally going to cause problems because an injured worker who might have received $50,000 for an impairment to his shoulder and got injured three months later and gets a $20,000 value for that, that’s significant to a working man or woman.

 

Bob Wilson: If I could step in for just a second here, I have got a couple of questions for Alan.

 

One, Alan, first one is you related to bias and doctors who work with the insurance companies and the bias that they may hold in that realm.

 

(00:29:55)

 

One of the complaints from the other side of the aisle and we all know this is a highly adversarial industry and these are some of the problems that we face. One of the complaints from the other side of the aisle is that a lot of the attacks going after the Sixth Edition specifically are being driven by attorneys who are concerned with fees related to the settlements that will come out of the increased disability ratings using the Fourth.

 

What is your response to that and then I’ve got another question, I don’t want to tie in if I could.

 

Alan S. Pierce: Valid point. In many states, including Massachusetts, lawyers do not charge a fee for the impairment rating portion of a case. Here in Massachusetts our impairment rating is under Section 36 of Chapter 152 and we do not charge a fee and even if the impairment benefit had not been paid prior to a settlement, we have to tell the Department of Industrial Accidents, how much of that settlement is for the impairment rating and reduce our fee accordingly.

 

So, in many states legal fees are not a part of the equation. In states where it is, the job of a lawyer is to maximize the benefit for his client and his or her legal fees rise and fall based upon his or her degree of success. So I can tell you knowing my colleagues, we are not up in arms over the use of the Sixth Edition because of our fees, we are up in arms over the reduction of benefits for the man or woman who has to put bread on the table.

 

Bob Wilson: So maybe to satisfy both sides, if these legislatures can address what you say are the improper way they’re using the Sixth Edition, they could also address that perceived shortcoming or driver of some of the complaints so they could make changes similar to what you just described in Massachusetts.

 

Alan S. Pierce: We do know, legislatures are very slow to act and they get into the nuances of this. They look up, as I do, they look up on the AMA as a sacrosanct institution, and it is. I can’t imagine life without the AMA. But the problem here is how it’s used.

 

Bob Wilson: Well, and along these lines — and Chris, I’ll get to you in just a second, I’m sorry. I like to bring in user comments sometimes where we can we have another viewer, Kim Martens, who actually is a defense attorney in Kansas, he’s with the National Workers’ Compensation Defense Network, has weighed in with what he calls just an idea.

 

He wrote one advantage of the Sixth Edition over the Fourth is that there is more consistency in its use by rating providers as compared with the provider using the Fourth Edition. Perhaps, state legislatures could acknowledge the rating values are lower under the Sixth Edition then to the Fourth Edition by writing into the law that when the rating is used to determine the compensation amounts, the dollar outcome under the Sixth would be increased by a multiple of two or three.

 

In other words, he’s saying if it’s coming up with what they believe is a more fair rating also come up with an acknowledgement from a financial perspective that it’s making that impact.

 

Alan S. Pierce: It may certainly. Look, the legislatures are going to have to deal with it as these statutes have found unconstitutional. So they are going to have to find a creative way. It can either abandon the use of the guides or they can — I wouldn’t mind seeing some type of formula so you double or triple the rating.

 

Sure, there are ways to do this or there are perhaps better ways, let the treating doctor and the IME doctor determine, and Judge Langham, you said perhaps, I could lift more than you. If you can lift the gavel, you can lift a lot more than I can. Let the judges decide where cases are consistent and not an artificial guide such as the artificial ratings from a guide that is very from the Fourth Edition to the Fifth and the Sixth.

 

Bob Wilson: All right, Chris, I’m going to go right to you because I know you’ve got something you want to say and I blocked you earlier.

 

Dr. Chris Brigham: No, there’s so many things I want to respond to. I think first I want to respond and clarify Alan says the ties to the insurance industry. I have ties to many stakeholders and governmental organizations, nonprofits, labor groups, and my client base is both defense and plaintiff. So, I don’t have any perceived bias or concern, I just want to — the best we can clarify things and make sure that injured workers receive the right care and return to function.

 

So I just need to clarify that I do like the concept that the attorney fees are not tied into the impairment number because that has been problematic in other jurisdictions.

 

And I think that’s not been the benefit of injured workers. The idea of having an adjustment factor, I think that makes sense that when you start to have data that supports that there is a difference that if you’re going to use that as an index, so you’ll have a multiplier and so we can look at — I’m not sure what that would be, for the Fifth Edition to the Sixth Edition.

 

When I did a study back in 2010, comparing values of the Fourth, Fifth and Sixth Edition by analyzing 200 cases, there was no statistically significant difference between the average values with the Fourth and the Sixed Edition. There was a difference with the Fifth and the Sixth.

 

Their values with the six, overall were somewhat decreased and some of that was change of methodology, the other were factors such as like knee and hip replacements. You’ve got a lot better results now than you got two decades ago and there are other situations or diagnoses that did not receive any ratable impairment under the Fourth and Fifth and did receive them under the Sixth.

 

(00:35:00)

 

But, if you could take an independent body, analyze the data and come up with a multiplier, I’d support that.

 

Bob Wilson: Well, Chris, in the tradition of asking doctors to make legal decisions as we do, if we were to adopt a multiplier system to compensate for some of these perceived shortcomings, should we counter or consider actual economic impacts or are we purely awarding for life and limb?

 

In other words, if David and I in an earlier discussion before this episode we were having a conversation and he indicated if he were to lose a leg he could still continue to do his job without a problem, but if you are perhaps a bus driver or if you are a construction worker, that becomes far more problematic with an identical injury. Do we in fact look at the actual economic impact on these injured workers or do we continue to look strictly at a loss of function percentage rating whether we use a multiplier or not.

 

Bob Wilson: Well, I’m not sure if it’s certainly not in the domain of physicians to look at the economic impact, but I think they can assess the issues of impairment maybe another indicator more of functional abilities or our gaps with what their occupational demands were so you could come up with another variable for that or some other sort of medical inputs the concept of disability but then the dollar amount should be that of the jurisdiction.

 

Alan had suggested that you just have the opinion from a treating physician and that from an IME without a basis to support that other than a personal opinion and I think that that’s illogical because you need to have a standard, you need to have a way that ideally is scientifically based but otherwise at least a consensus-based about what is our best understanding about how we approach the evaluation of a problem and then how do we assign a number to it.

 

So to have no basis so just to say, well, one person says five and the other person says 20, so we are halfway between, I don’t think that would work.

 

Alan S. Pierce: I agree, in fact, I will quote from part from the Johnson decision which actually quotes from Page 6 of the AMA’s Sixth Edition, a disability evaluation must be further integrated with contextual information typically provided by non-physician sources regarding psychological, social, vocational, avocational issues. They say that themselves at Page 6 of the Guides but in terms of the variance between 4, 5 and 6, this was studied extensively in Kentucky, and the Kentucky Commission when asked whether they felt the Sixth Edition is more objective, and I’m going to quote “Using experts is a valuable process; but when a single condition is found to have a 14% impairment under the Fourth Edition, a 28% impairment under the Fifth Edition and a 4% impairment with the Sixth Edition, it is not surprising questions occur on how objective these impairment ratings are”, whether it’s Four, Five, Six or the Seventh Edition, they are all over the lot. So consistency is fine, fairness is another issue.

 

Bob Wilson: Okay, I’m going to bring Emily Spieler back in, she has posed an interesting question because I really want to talk about the future and what you two gentlemen see is down the road and the solution to the issue because one thing that certainly come out of it for me that I had really not thought about before was not so much problems with the AMA Sixth Edition, but the legislative interpretation and use to the AMA Sixth Edition might be something else to discuss and to look at, that’s not something that really had been brought to my attention before.

 

But, Ms. Spieler actually writes John Burton has suggested that it is possible to develop a methodology that combines the medical impairment and (a medical determination with disability) an economic question. He has approached NIOSH about assistance and I believe NIOSH has approached RAND to possibly think about this. I am interested in knowing whether the speakers would support this effort, and then she thanks you for that.

 

So Chris, I’m going to ask you if you have a response to that, if you would support an effort that she describes from John Burton?

 

Dr. Chris Brigham: I would support an effort to look at a fresh look at all the factors and how impairment ratings are used and if there is a need for another determinant, and I do know that the AMA would be very open to input from others and working with others to come up with an improved approach.

 

Alan S. Pierce: And I say, yes, also, but I also say yes with a suspension of the use of the Sixth until this is done.

 

Bob Wilson: Interesting. David, you have a comment on that?

 

Judge David Langham: Well, it seems that any suspension of the use of the Sixth from what I’m understanding from Mr. Pierce is a legislative process or decision and I’m also understanding from him that he doesn’t think legislatures either can or will act rapidly or function appropriately. And so I’m not seeing as that is very realistic, maybe I’m missing something.

 

Alan S. Pierce: As we have cases going to the Appellate Courts and all around the country, uniformly holding that the Sixth Edition is unconstitutional. So one way or another it’s got to be faced, and perhaps if the AMA jointly went to the legislatures and agreed that a different methodology for determining disability benefits should be employed, it might be quicker to get the legislature to understand.

 

(00:40:07)

 

So, I think the AMA has some responsibility here to join if they agree with us and agree with me to translate that message to legislatures when bills are filed or pending to roll back and use to the AMA as the exclusive determining factor.

 

I don’t have a problem with it being a tool although I do have a problem with methodology but until we have a better way of doing this, I’d like to see the editors of the AMA join with us and go to the legislatures and say what Chris is saying here this afternoon.

 

Dr. Chris Brigham: And one thing I’d like to share is among the various editions of the Guides and trying to remove my own bias from that is the Sixth Edition is a significant improvement from the Fourth and the Fifth editions. But it gets to the issue of how the Guides are used, and I think that needs to be addressed.

 

I think we also see some problems reflective in our system itself in how we deal with Workers Compensation that is problematic.

 

Let me just give a brief example. Years ago I was training in Vermont and I was talking about the rating of someone who had a cervical fusion after having a cervical radiculopathy, that’s where you have neck pain involving an arm, and in the Fifth Edition if you had an impairment with the cervical radiculopathy you had a number of 15% to 18% whole person but then if you had the rating by the Fifth Edition after the surgery, and typically after that surgery people do very well you would get a 25% to 28% whole person impairment, a marked increase.

 

Yet person was doing much better, I mean, just didn’t make any sense and I had a very angry attorney who came to me and said I cost him $40,000 per case because the changes in the ratings and first it wasn’t me, it was just what the numbers were but he took this as a real threat. So, it’s my hope that most attorneys representing their clients are really representing their interests and want them to recover and restore function but we have all these other clouding factors there. So, we have to consider those, but we do need to have a standard. The Sixth Edition deals with some of the deficits with the Fourth and the Fifth, and I know that the AMA is open to input as we move forward to even a better standard.

 

Bob Wilson: We’ve got about two more minutes; so, Alan, do you have anything? We are going to give you the last chance, we started with you, we are going to end with you.

 

Alan S. Pierce: Yeah, well, I thank Chris and you folks for giving us the opportunity to debate this. I guess, enclosing, I would like everybody to remember that this is Workers Compensation that injured workers are deserving to be compensated in a fair and quick manner and they have given up certain remedies in order for this and this grand bargain between labor and management is a delicate balance, and when there is a dramatic shift in that balance, the tendency is to overcorrect, and I think we are all striving to find that magical balance, those scales of justice being equal, and I think those of us who are representative workers feel that the scales of justice have shifted markedly in a different direction under the Sixth. So, I’m hoping that we get some more uniformity so that with consistency we can get fairness.

 

Dr. Chris Brigham: Well, I think it’s interesting because I have known from this video and from my experience in the industry that we’ve got a lot of people in both sides of the industry who are trying to do the right thing but we just have to figure out what that is and how that balance is going to work for everybody involved.

 

Alan S. Pierce: That concludes our debate on the Sixth Edition of the AMA Guides. I’d like to again thank Bob Wilson of workerscompensation.com for putting this together as well as Judge David Langham, and of course Dr. Chris Brigham.

 

Clearly the issues will continue to be discussed and debated across the country and it was our pleasure to bring this to our audience here on Legal Talk Network.

 

So this is Alan Pierce until the next edition of Workers Comp Matters, go out and make it a day that matters.

 

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Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network, hosted by attorney Alan S. Pierce, where we try to make a difference in workers’ comp legal cases for people injured at work. Be sure to listen to other Workers Comp Matters shows on the Legal Talk Network, your only choice for legal talk.

 

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